Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are now being accepted for the fourth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee
will select from among articles in the field of Professional Responsibility with a publication date of 2013. The prize will be awarded at the 2014 AALS Annual Meeting in New York. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu

The New Jersey Supreme Court has held that a discharged attorney in a medical malpractice case had failed to state a claim against successor counsel for tortious interference with an attorney-client relationship.

The court recognized that competition for clients "must be conducted in adherence to the Rules of Professional Responsibility and the means used to induce a client may be neither improper or wrongful." However, a client may terminate the relationship at any time.

Here

... the complainant's assertions that the client failed to appear for a meeting, discharged her attorney, asked that her file be transferred, and directed the former lawyer not contact her, fell well short of identifying the sort of wrongful means that would give rise to a cognizable claim for tortious interference.

The court found that discovery was not appropriate and that

Dismissal with prejudice was entirely appropriate lest plaintiff's former client and her newly - chosen attorney be subjected to a mere fishing expedition, a remedy that would raise the specter of chilling any client's exercise of free choice to select counsel.

The New Mexico Supreme Court held that a viable action exists against an attorney for a personal representative on behalf of a statutory beneficiary who was not a client.

The attorney's client injured in an auto accident. Her daughter and granddaughter were killed in the accident and the client was appointed personal repesentative for their estates.

The attorney represented the client as an individual and as personal repesentative.

The other statutory beneficiary was the client's estranged husband. She claimed he had abandoned the child and should not share in the estate. The attorney had the husband sign a document that "reduced [his] entitlement to proceeds from the wrongful death litigation."

The husband thought the better of it, hired his own lawyer, and challenged the agreement. The attorney sued to enforce the settlement. The husband then countersued the attorney for malpractice, fraud, colluision and misrepresentation.

The matter was complicated by a potential conflict of interest, the possible contributory negligence of the attorney's client in the fatal accident.

The court here concluded that the Rules of Professional Conduct were relevant to the situation: "The determination of whether [the attorney] conformed to the standard of conduct requirred by the Rules of Professional Conduct will depend on the evidence produced at trial."

The attorney may have breached duties to the husband and cannot be granted summary judgment

The New Hampshire Bar Association Ethics Committee has recently issued an opinion on cloud computing.

The summary

The internet has changed the practice of law in many ways, including how
data is stored and accessed. "Cloud computing" can be an economical and
efficient way to store and use data. However, a lawyer who uses cloud
computing must be aware of its effect on the lawyer's professional
responsibilities. The NHBA Ethics Committee adopts the consensus among
states that a lawyer may use cloud computing consistent with his or her
ethical obligations, as long as the lawyer takes reasonable steps to
ensure that sensitive client information remains confidential.

The conclusion

The New Hampshire Ethics Committee concurs with the consensus among
states that a lawyer may use cloud computing in a manner consistent with
his or her ethical duties by taking reasonable steps to protect client
data. Granted, a lawyer may not find a provider of cloud computing
services whose terms of service address all of the issues addressed in this opinion], but it bears repeating, that while a lawyer need not become an
expert in data storage, a lawyer must remain aware of how and where data
is stored and what the service agreement says.Although the New Hampshire Rules of Professional Conduct do not impose a
strict liability standard, the duties of confidentiality and competence
are ongoing and not delegable. The requirement of competence means that
even when storing data in the cloud, a lawyer must take reasonable
steps to protect client information and cannot allow the storage and
retrieval of data to become nebulous.